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High Court Beach Replenishment Case Could Have OC Implications

OCEAN CITY – The U.S. Supreme Court has agreed to hear a case involving beach replenishment in Florida and its alleged “taking” of private property rights in a landmark suit that could have implications in coastal communities all over the country including Ocean City.

At issue is whether the state of Florida’s beach replenishment program constitutes an illegal “judicial taking” of private waterfront property. Coastal property owners in Florida, under the umbrella of a group named Stop Beach Nourishment, filed suit in 2005 challenging the Florida Department of Environmental Protection’s beach replenishment program, alleging the pumping of sand onto the beach in front of their properties created a new public beach and deprived them of their rights to the private beaches they enjoyed in front of their homes.

The Florida Supreme Court last year heard the case, entitled Stop the Beach Nourishment v. Florida Department of Environmental Protection, and upheld the state’s beach replenishment law, ruling against the property owners. The property owners contend the creation of new beachfront areas in front of private property amounted to an illegal taking of the owner’s rights without compensation in what has become a quasi-eminent domain case. Earlier this month, the affected property owners appealed to the U.S. Supreme Court and the high court agreed to take up the case.

Ironically, Florida’s beach replenishment program, like similar programs in coastal areas all over the country including Ocean City, pumps sand onto beaches eroded by hurricanes and other storms in an effort to save them for environmental and economic reasons, including protecting the very waterfront properties whose owners are challenging the practice. If the U.S. Supreme Court reverses the decision of the Florida Supreme Court and rules in favor of property owners, the result could have implications on other communities that currently have beach replenishment programs in place.

“I think this may well be one of the biggest cases for local governments that have a waterfront tourism industry,” said David Hallman, who was the Walton County, Fla. attorney when the case began. “Every local government, Florida or otherwise, should be very concerned about the potential for an adverse outcome here.”

Already, environmental and coastal protection groups around the country are lining up and rallying support for beach replenishment in Florida and elsewhere along the coasts. For example, the American Shore and Beach Protection Association (ASBPA) this week weighed in favor of continued beach replenishment in Florida, citing the potential problems the ruling could create in other coastal communities.

“While the case before the court is technically a Florida matter, the results of the case could have implications for coastal communities nationwide,” said ASBPA President Harry Simmons this week. “We believe the state of Florida is correct in its approach to restoring beaches and hope the high court agrees.”

Under the federal Beach and Shore Protection Act, counties and cities can restore beaches eroded by hurricanes and storms by adding sand beyond a designated erosion control line, separating private property from public property. Replenished beaches often become public property because the projects are generally funded with federal, state and local dollars. In its decision to uphold the act in the face of a challenge by private property owners, Florida’s Supreme Court decided while the private property no longer actually touches the water, the property owners retain access rights and use and view of the beaches.

“Without beach renourishment under the act, the public would lose vital economic and natural resources,” the Florida Supreme Court’s opinion reads. “As for the upland owners, the beach renourishment protects their property from future storm damage and erosion.”

While Ocean City’s ongoing beach replenishment program is different than the beach renourishment program in Florida, an eventual Supreme Court ruling in the case could have implications here. Under the guise of the federal Beach and Shore Protection Act, Ocean City, Worcester County, the state of Maryland and the federal government in the early 1980s began a program to restore eroded beaches along the resort’s waterfront by pumping sand onto the beach from offshore.

One key difference between the Florida case and Ocean City’s situation is the beach in front of the resort, for the most part, was already public when the beach replenishment program began 20 years ago. However, there are a handful of private beaches up and down the coast where the property owners have the rights to the high water line.

In addition, when Ocean City’s beach replenishment program began in the 1980s, property owners had to sign off on easements to areas adjacent to their private property lines for the creation of the elaborate dune system that exists today. While most signed off right away, given the protections to their properties the program afforded, many held out and did not sign off on the easements until pressured by the city.